COURT FILE NO.: 85478/13 DATE: 20160613

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Brittany McMillan, Plaintiff AND: Obafemi Adeite and State Farm Mutual Automobile Insurance Company, Defendants

BEFORE: J.C. Corkery J.

COUNSEL: Josh Nisker, Counsel, for the Plaintiff Joseph Villeneuve, Counsel, for the Defendants

HEARD: February 23, 2016

ENDORSEMENT

J.C. Corkery J.

[ 1 ] On April 14, 2011, Brittany McMillan was in motor vehicle accident with the defendant Obafemi Adeite (the “defendant”). The defendant brings this motion for summary judgment on the basis that the plaintiff did not commence her action within two years of the accident. The issue is discoverability, whether the plaintiff exercised reasonable diligence in discovering the extent of her injuries.

A. The Facts

[ 2 ] The relevant facts on this motion are not in dispute. The chronology of the case may be summarized as follows:

1. On April 14, 2011, the defendant struck the plaintiff’s motor vehicle from behind. She was taken from scene by ambulance to hospital. X-rays revealed no fractures and she was discharged the same day with medication and a referral for physiotherapy.
2. On April 16, 2011, Brittany followed up with her family doctor, Dr. Lubna Tirmizi. Dr. Tirmizi confirmed to the plaintiff that she had suffered no fractures and told her that she likely had soft tissue injuries.
3. On April 19, 2011, the plaintiff began to receive physiotherapy. The initial assessment determined that she had soft tissue injuries that fell within the Minor Injury Guideline for the purpose of receiving statutory accident benefits.
4. On May 4, 2011, Dr. Tirmizi completed a Disability Certificate for the plaintiff’s accident benefits claim. Dr. Tirmizi diagnosed the plaintiff with soft tissue injuries and indicated that the anticipated duration of her disability was 9 to 12 weeks. From her discussion with her family doctor, the plaintiff understood that she would get better with treatment and exercise.
5. On May 10, 2011, the plaintiff started receiving massage therapy.
6. On June 13, 2011 the plaintiff was referred by her family doctor to Dr. Kachooie, a physiatrist, to investigate complaints of numbness in her fingertips.
7. On July 5, 2011, Brittany was seen in Dr. Kachooie’s clinic and underwent an EMG study. On the same day, the plaintiff was seen by a chiropractor at Dr. Kachooie’s clinic who completed a Disability Certificate which recorded a diagnosis of left C6 cervical radiculopathy, lumbar spine dysfunction and lower back pain. He noted that the plaintiff had a complete inability to carry on normal life. including housekeeping and was unable to continue her education program. He reported that the anticipated duration of the plaintiff’s disability was 5 to 8 weeks.
8. The plaintiff’s symptoms were at their worst in the first three to four months after the accident, during the acute recovery phase from April 2011 through June 2011. She was unable to attend school and her work placement due to the severity of her symptoms. She also was unable to complete her summer employment.
9. On July 14, 2011, Brittany saw Dr. Kachooie. He ordered an MRI of her cervical spine. He did not suggest that her injuries might be permanent and serious. He did not ask the plaintiff to make a further appointment with his office after the MRI was completed.
10. By September 2011, the plaintiff’s symptoms had improved. She was able to resume many of her daily activities, including dance classes, going to the gym and driving. In September 2011, she started working full-time as a Grade 2 teacher.
11. On September 17, 2011, the plaintiff had the MRI of her cervical spine. Dr. Kachooie did not provide the plaintiff with the results, discuss the results with her or ask her to do anything about the results.
12. After the MRI Brittany saw her family doctor on numerous occasions throughout 2011, 2012 and 2013. At no time did he discuss the September 17, 2011 MRI with her. The plaintiff attended numerous appointments for massage and chiropractic treatment. At no time before June 26, 2013, did any of her treating practitioners discuss the results of the MRI with her or advise Brittany that her injuries were permanent and serious.
13. In May 2012, the plaintiff ran a half-marathon.
14. While the plaintiff continued to improve, she still experienced symptoms from the collision including neck pain, back pain, headaches, rib pain, left hand and forearm symptoms, and anxiety in cars. In early 2013, she was concerned that she was no longer improving and so she spoke with her family doctor.
15. On March 20, 2013, Dr. Tirmizi referred the plaintiff back to Dr. Kachooie, whom she had not seen since July 14, 2011.
16. On April 1 and 13, 2013, the plaintiff served notice letters on the defendant.
17. On June 26, 2013 the plaintiff saw Dr. Kachooie. Relying on the September 17, 2011 MRI results, Dr. Kachooie told the plaintiff that: a. she had two herniated discs in her neck, b. she could not run anymore because it could cause significant damage to her spine, c. she was too young for surgery but that she might consider surgery if things got worse, and d. her condition was serious and that she should see a lawyer.
18. In July 2013, the plaintiff retained a lawyer.
19. On September 30, 2013 the Statement of Claim was issued.

[ 3 ] The plaintiff acknowledges that she took no steps to obtain the results of the September 17, 2011 MRI. As Dr. Kachooie had ordered the imaging, she believed that his office would receive the results and that he would contact her if he had any concerns. She also believed that her family doctor, Dr. Tirmizi, would receive a copy of the MRI report and would contact her if there were any concerns. In her experience, she rarely heard back from her doctors to discuss the results of any medical investigation unless there was a concern.

B. Issue

[ 4 ] The issue on this motion for summary judgment is whether the plaintiff has met the onus of establishing that she exercised reasonable diligence in investigating the possibility that her injuries from the accident were permanent and serious. Specifically, on the facts of the case, does reasonable diligence require a patient to take steps to determine the results of an MRI ordered by a specialist that the patient has been referred to by her family doctor?

[ 5 ] The defendant takes the position that the plaintiff’s claim is statute barred under the Limitations Act, 2002, S.O. 2002, c. 24. The defendant submits that the plaintiff ought to have known of the existence of the elements giving rise to a claim for damages prior to issuing her claim on September 30, 2013. She has failed to meet the onus of establishing that following-up on the MRI result within the two-year limitation period would have been abnormal or unusual or beyond the requirements of a reasonable person suffering from her continuing condition. Had she followed up in timely fashion, the defendant submits, she would have obtained her diagnosis and commenced this action within the applicable limitation period.

[ 6 ] The plaintiff argues that it was reasonable for the plaintiff to assume that there were no problems with her MRI results when she did not hear back from her doctors. The responsibility for conveying the results of investigations lies with the physicians involved and not the patient. As the plaintiff had no notice that her injuries were permanent and serious and she complied with her doctors’ directions, she has met the onus of establishing that she exercised reasonable diligence.

C. Analysis

[ 7 ] Section 4 and 5 of the Limitations Act state:

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[ 8 ] Section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8 states:

(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).

[ 9 ] The question then is: when should a reasonable person with the plaintiff’s abilities and in her circumstances ought to have first known that she had a claim against the defendant for permanent and serious injury as a result of the motor vehicle accident.

[ 10 ] I reject the submission of the defendant that the plaintiff was “lackadaisical and indifferent” with regard to her treatment. To the contrary, I note the following regarding the abilities and circumstances of the plaintiff in this case:

a. After the accident the plaintiff visited her family doctor and followed his advice. b. The plaintiff was told by both her family doctor and by the chiropractor he referred her to that her disability would last a certain number of weeks and both signed certificates stating this. c. The plaintiff diligently followed complied with the referrals and recommended treatment. d. Her disability diminished, as her doctors had projected. In September, 2011, she was able to start full-time teaching and to resume daily activities, dance classes and going to the gym. e. Her condition generally improved, as her doctors had projected. f. Dr. Kachooie who ordered the MRI did no follow-up with the plaintiff or her family doctor regarding the MRI. g. Dr. Tirmizi, the plaintiff’s family doctor, who referred the plaintiff to Dr. Kachooie, did no follow-up with the plaintiff or Dr. Kachooie regarding the MRI. h. Only the September 17, 2011 MRI revealed the possibility of a permanent and serious injury.

[ 11 ] The earliest that the plaintiff could have known she suffered a permanent and serious injury was on or after the date of the MRI. However, she assumed that either Dr. Kachooie or Dr. Tirmizi would contact her if there was any concern with the MRI results. This was a reasonably held assumption.

[ 12 ] The diagnoses of injuries, the determination of how permanent and serious the consequence of such injuries, falls within the realm of experts. Patients and potential plaintiffs act reasonably when they defer to such experts. With respect to health care, it is unreasonable to hold patients to a higher standard of managing their care than their doctors.

[ 13 ] In this case, the plaintiff reasonably deferred to experts, her doctors If the doctor’s who are responsible for her are and who capable of assessing MRI results do not to follow-up, then it is reasonable for the plaintiff, who is unqualified to assess such results, to not follow up. Generally, health care professionals appreciate and prefer such deference.

[ 14 ] In my view, on the facts of this case, a reasonable person with the plaintiff’s abilities and in her circumstances ought to have first known that she had a claim against the defendant for permanent and serious injury, was on June 26, 2013, the day Dr. Kachooie told her how serious her injury was.

[ 15 ] However, if I were wrong in finding such deference to doctors to be reasonable, I must still consider the fact that the MRI was done on September 17, 2011. Even if reasonable diligence required the plaintiff to follow-up, it would not need to be immediate. A patient inquiry thirteen days after an MRI would still be reasonably diligent. The earliest the plaintiff would have known that she had a claim against the defendant for permanent and serious injury, using this approach would still have been on or even after September 30, 2011.

D. Conclusion

[ 16 ] Reasonable diligence does not require a patient to take steps to determine the results of an MRI ordered by a specialist that the patient has been referred to by her family doctor.

[ 17 ] The defendant’s motion for summary judgment is dismissed and the plaintiff shall be entitled to her costs on this motion. If the parties are unable to agree on costs, I am prepared to receive brief written submissions within 30 days for the plaintiff and 45 day for the defendant.

J. C. Corkery J. Date: June 13, 2016